Colo. AG promises swift action as other counties follow suit

Jason Woodrich, left, and Ben Hauth share a kiss after signing their marriage license at the Denver County clerk's office Thursday. Denver began issuing marriage licenses to same-sex couples Thursday after a judge refused to stop Boulder County from allowing gay marriages. (John Leyba / The Denver Post)

Colorado's battle over gay marriage took another dramatic turn Thursday as a judge refused to stop Boulder County from issuing marriage licenses to same-sex couples, a ruling that prompted Denver's county clerk to immediately begin granting licenses as well.

By day's end, that ripple effect — Pueblo County also plans to begin issuing licenses Friday morning — led Colorado Attorney General John Suthers to promise swift action "to prevent a legal patchwork quilt from forming."

In his ruling, Boulder District Judge Andrew Hartman said Suthers' "fatal flaw" was in failing to show the damage he believed is being caused by County Clerk Hillary Hall's decision to issue the licenses.

"The state asserts that Clerk Hall is causing irreparable injury by issuing same-sex marriage licenses, namely that she is causing 'legal chaos and confusion,'" Hartman wrote in the23-page ruling. "However, when pressed, the state does not identify specific irreparable harm, offering only speculation."

Hartman's ruling also instructed Hall to report marriage licenses issued to same-sex couples to the state, although those records will remain confidential.

The judge also told Hall to give notice to past and future recipients of same-sex licenses that "the validity of their marriages" will be dependent on whether the courts ultimately uphold Boulder County's authority to allow same-sex marriages.

Hall said she was "very pleased" with Hartman's decision, and that she could easily implement the judge's instructions

"It's a first step," she said of the ruling. "We could have been told no, we could have been told to stop."

Suthers released a statement late Thursday afternoon in which he decried the "uncertainty" caused by the rulings in Adams and Boulder counties, saying it "cries out for resolution by the state's highest court."

"It is paramount that we have statewide uniformity on this issue and avoid the confusion caused by differing county-by-county interpretations of whether same-sex marriage is currently recognized," Suthers said. "Therefore, we will act swiftly in an attempt to prevent a legal patchwork quilt from forming."

Suthers did not specify how he intends to act.

'Civil disobedience'

In his written order, Hartman noted that while the Adams County ruling was a "strong indication that the Colorado ban on same-sex marriage will ultimately fall," the state's constitutional prohibition is still "hanging by a thread and the court must presume it remains valid."

"There is little argument that Clerk Hall is engaging in a form of civil disobedience," Hartman wrote. "She is apparently taking the position posited by St. Augustine and followed notably by Martin Luther King Jr. that 'an unjust law is not law at all.'"

But while Suthers argued that Hall's defiance of the law in itself would harm the state by causing a "loss of faith in the rule of law," Hartman said the attorney general failed to prove that.

"An alternate public opinion is that the people of Colorado laud Clerk Hall for her pluck and/or condemn the Attorney General for his tenaciousness," the judge wrote.

Hall said she was "overwhelmed" by Hartman comparing her to MLK and St. Augustine, but disagreed that she was engaging in civil disobedience.

"It's my job," she said. "We went with what we had the legal basis to do and what served our community."

Hall said what moved her most was the feedback from same-sex couples and the hardships they went through in their quest to get married.

"To receive the emails and hear the stories and talk to those people in person was so moving," Hall said.

A ripple effect

Shortly after the ruling Thursday, Denver County Clerk Debra Johnson also began issuing marriage licenses to same-sex couples.

Hall said she was happy to hear the news, and while she had not heard from any other county clerks, she hoped others would soon start issuing their own licenses to same-sex couples.

"I hope other elected officials will look at this," Hall said.

Hall began issuing marriage licenses to same-sex couples June 25 after a decision by the 10th U.S. Circuit Court of Appeals in Kitchen v. Herbert that struck down a gay marriage ban in Utah.

Although a stay was issued in that decision — and Utah announced Wednesday it will appeal to the U.S. Supreme Court — Boulder County argued that the ruling itself clearly establishes "marriage as a fundamental right that extends to same-sex couples," and that Colorado's gay marriage ban is unconstitutional.

Hall has issued 123 marriage licenses to same-sex couples in the intervening weeks. The state said Wednesday that it was not seeking to invalidate those licenses at that particular hearing.

Dylan Yates was one of the people to receive a marriage license from Boulder County, and said Hall will "forever be on the right side of history."

"For me, it's the little details in the legal status of marriage that make my heart sing," Yates said. "Being able to say, 'We. We are a family. Our son, our marriage, our home, our,' and know we have equal rights to those words."

Hartman wrote in his ruling that, contrary to the state's assertion, Hall issuing marriage licenses that couples "freely and voluntarily" obtained did not do them harm.

"The state would paint the couples as victims based on their attempt to exercise what a Colorado district court and the Tenth Circuit have deemed to be a fundamental liberty right," Hartman wrote.

Yates said she knew there was a possibility the licenses could be invalidated, but that did not stop her.

"There was absolutely no hesitation," Yates said. "We both feel completely certain that, with time, patience and civilized thinking, these cases will all go in the favor of equality."

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